Oregon Judge 'SLAPPs" Lawyer; Let's Out a Yelp

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In Daniel Bernath v. Tabitha J. & Yelp, Inc. (Case No. 1305-06167), Multnomah County (Ore.) Circuit Court Judge Henry Kantor last week granted Internet Service Provider Yelp!'s Motion to Strike a defamation lawsuit brought by an attorney irate over a client's negative review of his legal services.

A Eugene, Oregon, resident identified as Tabitha J. was sued by Bernath after her negative Yelp! post. Judge Kantor, noting that the review involved a matter of public interest, ruled that Yelp! was shielded from liability both by Oregon's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [ORS 31.150] and Sec. 230(c) of the Communications Decency Act.

Dentists, realtors and restaurateurs stung by negative Yelp! postings are among those who have sought recourse in court (See, e.g., "TUOL" posts 4/24/13 & 2/11/13), usually, unsuccessfully because of the CDA protection accorded ISPs in Sec. 230(c): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Tip of the hat to (blogericgoldman.org) Eric Goldman's Technology & Marketing Blog for following the case.

Ill. Court Shields Anonymous Online Griper from Realty Co.

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Yelp! account holder Diana Z., Chicago, IL can retain her aura of mystery thanks to an Appellate Court of  Illinois ruling denying a realty management company's efforts to identify the unidentified critic blasting it for charging her rent collection late fees.

In Brompton Building, LLC v. Yelp! Inc. (2013 WL 416185), the management company, whom the anonymous Diana Z. mistakenly identified as managing the apartment building in which she lived, sought to identify its critic pursuant to Illinois Supreme Court Rule 224, which states that a "person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery."

As reported by prominent Chicago social media lawyer Evan Brown in his law firm's online newsletter, the Appellate Court affirmed a trial court's denial of the Rule 224 petition. The appellate court ruled that the plaintiff failed to show how it was damaged by the Yelp! poster, and noted the statements at issue were non-actionable opinions, rather than assertions of fact.

Online Bad Reviews Tough for Restaurateur to Swallow; Sues for Libel

Image via CrunchBaseIn YS Catering, LLP v. Yelp!, Inc. (Case No. 1:2011cv23483), removed this week from state court to the U.S. District Court for the Southern District of Florida,  a company that operates The Fresh Diet food service has sued the Yelp! review site for libel, claiming the defendant committed "defamation by implication" by top-loading site users' negative reviews of the company while allegedly hiding access to more positive feedback.

As reported by the MediaPost News blog, the complaint alleges Yelp! prominently displays 13 negative posts about The Fresh Diet, but that an additional 16 reviews, many of which are positive, require visitors to click to a second page. Interestingly, the plaintiff isn't alleging that it was defamed by the content of the bad reviews, which wouldn't withstand a fair comment defense to libel (opinions by their nature are neither true nor false, and thus, are non-defamatory), but rather, by the defendant's business judgment in how it decided to display the reviews critical of the plaintiff.

It's artful, but not likely to succeed, because Section 230(c)(1) of the Communications Decency Act of 1996 shields Internet Service Providers such as Yelp! from such liability by stating: "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Food for thought.